Examination‑in‑Chief: Rules, Strategy and Case Examples

Introduction

Examination‑in‑chief (often shortened to “exam in chief”) is the first stage of a witness’s oral evidence. It is conducted by the party who calls the witness and is used to present that witness’s account to the court in a clear, structured way. The focus is on what the witness saw, heard, did, or recorded, so the court can assess what weight to give the evidence.

The method is simple in principle: ask open, non‑leading questions, keep to the witness’s personal knowledge, and avoid inadmissible material. The practical reality requires planning, careful question design, fair use of documents and exhibits, and close attention to the rules of evidence.

In criminal cases, examination‑in‑chief is typically oral, though video‑recorded interviews can serve as the evidence‑in‑chief of vulnerable witnesses. In civil trials, the general rule is that the witness statement stands as the witness’s evidence‑in‑chief (CPR 32.5), with any necessary oral supplementation kept concise.

What You’ll Learn

• The purpose of examination‑in‑chief and how it differs in criminal and civil cases
• How to structure a clear, chronological narrative using non‑leading questions
• When limited leading is allowed, including hostile witness applications
• Hearsay basics, personal knowledge, previous statements, and memory refreshing
• Opinion evidence: what lay witnesses can say and when experts are required
• Competence, oaths or affirmations, and special measures for vulnerable witnesses
• How to introduce documents, photos and real evidence through a witness
• Practical strategies to avoid objections and keep testimony focused
• Key UK authorities and rules you can cite with confidence

Core Concepts

Non‑Leading Questions and When Exceptions Apply

The core rule is simple: do not lead your own witness on contested matters. A leading question is one that suggests the answer (e.g., “You saw a red car, didn’t you?”). Instead, use open questions:

• “Where were you at 8.30 pm?”
• “What did you see next?”
• “How far away were you?”

Limited exceptions:

• Background or undisputed facts: leading is usually tolerated to move things along (e.g., “You work at X Ltd?”).
• Identification of items already before the court (e.g., “Is this the invoice you signed on 4 March?”).
• Hostile witnesses: with the court’s permission, you may cross‑examine your own witness and put leading questions (Criminal Procedure Act 1865, s.3).

Tip: If you need to lead to locate a time, place, or exhibit, ask permission and state why the point is not in dispute.

Hearsay, Personal Knowledge, and Previous Statements

Generally, witnesses must give first‑hand evidence of what they perceived. Avoid hearsay unless a statutory or common‑law exception applies.

• Criminal proceedings:
  • General hearsay framework: Criminal Justice Act 2003 (CJA 2003), ss.114–118.
  • Unavailable witness exceptions: s.116 (e.g., fear, illness).
  • Business and other documents: s.117.
  • Previous statements for truth in limited scenarios: s.120 (e.g., recent complaint in sexual cases; identification; memory refreshing statements).
  • Refreshing memory: s.139 allows a witness to refer to a document made or verified when events were fresh in mind. Establish when and how it was made, why it is needed, and seek the court’s permission.
• Civil proceedings:
  • Hearsay is admissible subject to notice and weight (Civil Evidence Act 1995). The court will weigh reliability, including whether the maker can be called.

Key points:

• Do not bolster credibility with previous consistent statements, save for recognised exceptions (e.g., recent complaint, to rebut an allegation of fabrication, or where allowed by s.120 CJA 2003).
• If memory is poor, try a structured chronology and use documents properly to refresh, rather than leading the witness to an answer.

Opinion Evidence: Lay vs Expert

• Lay witnesses give facts. They may give ordinary opinions naturally bound up with factual description (e.g., speed, apparent age, sobriety), but not opinions requiring specialised knowledge.
• Expert evidence is allowed where specialised knowledge is needed and is subject to procedural controls (e.g., CrimPR Part 19; CPR Part 35 in civil).
• Experts should not give opinions on overall credibility or whether a witness is telling the truth (R v Turner [1975] QB 834).

Competence, Oaths, Special Measures, and Video Evidence‑in‑Chief

• Competence: Most people are competent to give evidence if they can understand questions and give understandable answers (Youth Justice and Criminal Evidence Act 1999, s.53).
• Oath or affirmation: The court determines whether a witness should be sworn (YJCEA 1999, s.55; Oaths Act 1978).
• Special measures: Screens, live link, intermediaries, and ground rules hearings may be used to help vulnerable witnesses (YJCEA 1999; CrimPR). Keep questions short and simple, avoiding tag questions and complex syntax.
• Video evidence‑in‑chief: A video‑recorded interview (ABE‑compliant) may stand as the witness’s evidence‑in‑chief (YJCEA 1999, s.27). Pre‑recorded cross‑examination may follow (s.28).

Using Documents, Photos, and Real Evidence

• Establish a basis: what the item is, how the witness knows, when and by whom it was created or handled.
• For documents, identify authorship or the basis for admissibility (e.g., business records under CJA 2003 s.117 in crime; or under the Civil Evidence Act in civil).
• For photos and videos, confirm date, place, and that they fairly and accurately show what they purport to show.
• Chain of custody matters for physical items that could be altered.

Key Examples or Case Studies

R v Lubemba [2014] EWCA Crim 2069

• Context: Approach to questioning young and vulnerable witnesses.
• What the court said: Judges must control questioning to ensure fairness, including limiting length and complexity. Short, simple, non‑tag questions are encouraged.
• Practice point: Build your examination around plain language and logical steps, especially where special measures are in place.

R v Barker [2010] EWCA Crim 4

• Context: Competence of a very young child to give evidence.
• What the court said: A child can be competent if they understand questions and can provide understandable answers. The emphasis is on the quality of communication, not age alone.
• Practice point: Establish competence early with simple, neutral questions. Avoid legal jargon and double‑barrelled questions.

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

• Context: Reliability of human memory and the use of documents in civil trials.
• What the court said: Memory is fallible and can be shaped by later events and documents. Contemporaneous documents often carry significant weight.
• Practice point: In evidence‑in‑chief, use contemporaneous records to anchor recollection. Ask the witness to explain how and when a document was created or checked.

Scenario: Introducing a CCTV Clip

• Steps:
  • Establish the witness’s role (e.g., store manager) and how the system operates.
  • Confirm date/time settings, retention policy, and any export process.
  • Ask the witness to describe what the clip shows in their own words.
  • Confirm that the clip fairly represents what was recorded and has not been edited.
• Practice point: Keep questions open. Use signposts (“I’m moving to the timestamp shown at 19:42”) without suggesting disputed facts.

Practical Applications

Plan with precision

• Map each issue in the charge or claim to the parts of the witness’s evidence that matter.
• Prepare a topic‑based outline: background, key events in time order, documents/exhibits, and conclusion.
• Keep one point per question. Avoid multi‑part questions.

Build credibility early

• Confirm identity, role, and how the witness comes to know the facts.
• Use neutral, factual openers before moving to the key events.
• If there is a prior statement, establish when it was made and whether it was true at the time.

Design clear, fair questions

• Prefer “what”, “where”, “when”, “how”, and “why” to “did you not…”.
• Avoid adjectives that carry argument (e.g., “reckless”, “obvious”)—let the facts speak.
• Use short sentences and plain English. Pause to let the witness finish.

Introduce exhibits properly

• Documents: identify, establish authorship or the route to admissibility, and put relevant passages neutrally.
• Photos/video: confirm accuracy and context before asking the witness to describe what they show.
• Real evidence: cover discovery, continuity, and condition.

Handle memory with care

• If recollection falters, consider refreshing under CJA 2003 s.139:
  1. Establish the document was made or verified when events were fresh.
  2. Explain why refreshment is needed.
  3. Seek permission to refer to it.
  4. After refreshing, return to open questions.
• If a previous statement becomes admissible as evidence of truth (e.g., CJA 2003 s.120), make the statutory route clear and ask the court for a ruling.

Manage difficulties

• Inconsistency: if the witness departs from a prior account, explore reasons fairly. If necessary, consider seeking a hostile witness ruling (CPA 1865 s.3) before using leading questions or previous statements.
• Vulnerable witnesses: request special measures in good time; agree ground rules; adjust your pace and format. Avoid tag questions and figurative language.
• Coaching: do not rehearse answers. You may familiarise the witness with the process but must not practise their evidence (see R v Momodou [2005] EWCA Crim 177).

Avoid common objections

• Leading on disputed facts.
• Hearsay without a recognised exception.
• Irrelevance or argumentative questions.
• Opinion beyond the witness’s competence.
• Compound or unclear questions.

Time and structure management

• Signpost topic changes so the judge and jury can follow.
• Use headings in your own notes (not spoken aloud) to keep to your plan.
• Build in short pauses for note‑taking and judicial intervention if needed.

Civil‑specific pointers

• CPR 32.5: the witness statement is usually the evidence‑in‑chief. Keep oral questions to clarifying points, updating matters since the statement, and dealing with any new developments.
• Think carefully before seeking permission to ask about anything that should have been in the statement.

Summary Checklist

• Purpose clear: what does this witness prove on each issue?
• Structure set: background → chronology → documents/exhibits → tidy close.
• Competence and oath/affirmation addressed where needed.
• Non‑leading questions prepared for contested matters.
• Hearsay risks checked; statutory routes identified if relevant.
• Memory refreshing plan ready (CJA 2003 s.139) and previous statement route (s.120) considered.
• Exhibits: basis, authenticity, and continuity covered.
• Opinion boundaries respected; expert vs lay separated.
• Special measures requested and ground rules agreed where appropriate.
• No coaching: process familiarisation only; record any rulings.
• Finish strong: recap key facts (without argument) and leave the rest to submissions.

Quick Reference